Tag: divorce and constitution

Calling a Stepparent Dad

Posted by Ron Kauffman on

An important aspect of child custody arises when families reorganize, and whether it is okay for a child to start calling a stepparent “dad” and “mom”. In a recent Pennsylvania case the issue was whether a family judge can order the Child to only call her biological parents “Dad” and “Mom”.

Stepparent Name

Name Calling

A Mother and Father were married in 2012, welcomed their first and only child O.K. in 2013, and then separated five years later. Mother was a client assistant and later a stay-at-home Mom. She re-married her new husband, (the Stepfather), with whom she has two children.

In 2018, the couple agreed to a week-on/week-off shared custody schedule that continued until 2020, when the family court reduced the Father’s timesharing to the first, second, and fourth full weekends of each month during the school year.

In 2021 the Father tried to modify custody and return to a week-on/week-off shared physical custody schedule and sole legal custody as to educational decision-making.

At the modification trial, the Mother testified to having the Child baptized without notifying Father and contrary to his known wishes, and that she would not discourage the Child from calling Stepfather “dad” or “daddy”. The family judge found Mother’s actions were part of a pattern of to diminish Father’s place and authority in the Child’s life.

The family judge modified custody and returned the parties to a week-on/week-off physical custody schedule, denied the Father’s request for sole legal custody concerning educational decision-making, and importantly, held the Mother in contempt.

Mother moved to reconsider, asking the court to vacate the provisions compelling co-parent counseling and requiring the parties to correct the Child’s use of names like “Mom” and “Dad” for the parties’ significant others.

The trial court then granted Father limited sole legal custody to make medical decisions as to whether the Child receives the COVID-19 vaccination and any subsequent boosters of that vaccine and denied Mother’s emergency motion for reconsideration and injunctive relief. The Mother appealed.

Florida Parental Responsibility and Stepparents

I’ve written about parental responsibility in Florida before. In Florida, “custody” is a concept we have done away with. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

A stepparent does not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. Stepparents have the difficult task of raising a child that is not biologically or legally their own. Sometimes, stepparents are responsible for providing love, financial support, and supervision when there is an absentee natural parent. When a stepparent remarries and wants to have legal rights in connection with the spouse’s child, adoption is the right path.

The Constitution and Names

On appeal, the Mother argued it was wrong to restrict the child to referring only to her biological parents and “dad” or “mom” in that it violated the Child’s First Amendment right to freedom of speech.

In custody matters, the paramount concern is the best interest of the child involved. However, in cases raising First Amendment issues, a court has to examine the  record to make sure the judgment does not violate free expression.

Generally, content-based restrictions on speech are presumptively unconstitutional and are subject to strict scrutiny. Strict scrutiny requires the government to prove the restrictions are narrowly tailored to serve a compelling state interest.

While a state has an interest in protecting the physical and mental health of a child, that interest is not triggered unless a court finds that the restricted speech caused or will cause harm to a child’s welfare.

The family judge ordered:

“The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”

The court restricted the Child’s use of the terms “Mom,” “Dad,” to the Child’s biological parents. Accordingly, the order was a content-based restriction subject to strict scrutiny.

Father testified that the Child is calling Stepfather “Dad” or “Daddy,” a term that applied only to Father during the Child’s first five years of life – years during which Father testified he was the Child’s “stay-at-home Dad.”

Mother testified that it is “unreasonable” to expect the Child, at age 8, to call Stepfather by a name different from what her two younger half-siblings will use in the future.

The court held it was unreasonable for Mother to expect that Father share the title “Dad” with Stepfather, in light of evidence that Mother has acted to diminish Father’s role in the Child’s life, such as leaving him in the dark regarding a baptism.

The family judge’s imposing a restriction on the Child’s speech, did so in an attempt to further the state interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.

However, the restrictions were not narrowly tailored to further the state’s compelling interest without a finding by that the use of the term “Dad” or “Daddy” to refer to Stepfather caused harm or will cause harm to the Child.

Indeed, the text of the trial court’s order suggests that the trial court was concerned that the parents’ mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and stepparents were central to that process.

Without a finding that the Child’s use of the terms “Dad” and “Daddy” to refer to Stepfather posed a tangible risk of harm to the Child, the appellate court was constrained to vacate the content-based restriction.

The opinion is here.

Family Court and Religious School

Posted by Ron Kauffman on

In a race between schools for your child, when can a family court judge choose the religious school over a secular one? For one Kentucky family’s child custody dispute, the court of appeals decides which school enters the Winner’s Circle.

Custody and School

Starting Gate

In the Kentucky case, a Mother and Father shared joint custody of their daughter, who has been at the center of a protracted legal dispute since the parties’ separation in 2016. The parties could not reach an agreement as to where the child should attend kindergarten, and asked the court to resolve the issue.

The Father, who is Catholic, liked that Seton was a Catholic school but noted that the curriculum also emphasized general Christian principles, as well as secular subjects such as Darwinism and evolution (ed. wow)

Father said that he was willing to pay Seton tuition costs. Father expressed concern about child attending Berea Independent due to Mother’s pending criminal charges in Berea for second-degree animal cruelty. Because Berea is a small community, Father worried child could be stigmatized, even if Mother was acquitted.

Mother, who is Baptist, was not comfortable with child attending a Catholic school and preferred that child attend a secular school. Mother testified that Berea Independent was her primary choice because it was less than a mile from her work, was in a small town, and was where she went to school as a child. She also liked that it provided a K-12 grade education in one place and liked the open classroom layout of the school.

Following the hearing, the family court judge entered an order with detailed findings of fact, concluding that it was in child’s best interest to attend Catholic school.

The Mother appealed.

Florida Divorce and Religion

I have written about the intersection of religion and custody before, especially when that intersection relates to harm to the child. For example in one area there is a frequent religious controversy: whether to give a child their mandatory vaccinations.  Usually, religion is used by the objecting parent as a defense to vaccinating children.

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in the Florida custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution.

So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge. One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

In one Florida case, the Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The Florida judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

The Home Stretch

Mother argued on appeal that the family court’s order compels her to send her child to a Catholic school she is conscientiously opposed to in violation of her constitutional rights.

The appellate court found that when parties to a joint custody agreement are unable to agree on a major issue concerning their child’s upbringing, the trial court must evaluate the circumstances and resolve the issue according to the child’s best interest.

The appellate court found substantial evidence to support the family court’s decision that sending child to Catholic school was in child’s best interest. The court specifically mentioned the school’s proximity to the interstate, its later start time, its teacher-to-student ratio, its on-site aftercare program, and the fact that child would know other students attending.

Perhaps most importantly, the family court felt it was not in child’s best interest to attend the secular, Berea Independent because of the possibility that child might experience negative social stigma due to Mother’s pending animal cruelty case in Berea.

Further, the trial court specifically noted its decision was not based upon religious interests. Mother “bear[s] the burden of proving that the decision of the trial court was based upon religious interests and such impropriety [will] not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”

The Kentucky Court of Appeals opinion can be found here.

Free Speech, Child Custody, and Insults

Posted by Ron Kauffman on

Free speech can be an issue in any child custody case when parents hurl insults at each other in front of their children. Because it is not in the children’s best interest, family judges can order parents not to disparage the other parent in front of the children. One Indianapolis court recently had to consider whether an anti-disparagement order went too far.

Free Speech Custody

Start Your Engines

After several years of marriage, Yaima Israel, filed for divorce from her husband Jamie Israel. After the trial, the family court judge decided that joint legal custody was an “unworkable” option based on the parents’ inability to agree about their child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

The family court’s decree also contained a non-disparagement clause. Family courts sometimes enjoin speech that expressly or implicitly criticizes the other parent.

In another case for example, a mother was stripped of custody partly because she truthfully told her 12-year-old that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

In the recent Indianapolis case, the order prohibited either parent from “making disparaging comments about the other in writing or conversation to or in the presence of child.

However, the order also prohibited insulting the other parent in front of friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone else. All kinds of speech was banned, including “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

The Husband challenged the judge’s non-disparagement clause that restrained them from ever making disparaging remarks about one another, regardless of whether the child was present.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children. Accordingly, Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In Florida, parents have had their rights to free speech limited or denied for various reasons. In one case, a mother went from primary caregiver to supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

But some have argued that if parents in intact families have the right to speak to their children without the government restricting their speech, why don’t parents in broken families have the same rights?

The Constitutional Brickyard

The Indianapolis appellate court ruled that the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.

Restraining orders and injunctions that forbid future speech activities, such as non-disparagement orders, are classic examples of prior restraints. Non-disparagement orders are, by definition, a prior restraint on speech. Prior restraints on speech are the most serious and the least tolerable infringement on free speech rights.

While a prior restraint is not per se unconstitutional, it does come to a court bearing a heavy presumption against its constitutional validity.

To determine whether a prior restraint is constitutional under the First Amendment, the court considers: (a) ‘the nature and extent’ of the speech in question, (b) ‘whether other measures would be likely to mitigate the effects of unrestrained’ speech, and (c) ‘how effectively a restraining order would operate to prevent the threatened danger.’”

There is a compelling government interest in protecting children from being exposed to disparagement between their parents. To the extent the non-disparagement clause prohibits both parents from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.

But the non-disparagement clause in this case went far beyond furthering that compelling interest because it prohibited the parents from making disparaging comments about the other in the presence of anyone – even when the child was not present.

In the final lap, the court of appeals reversed the portion of the non-disparagement clause including “…friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” as an unconstitutional prior restraint.

The Indiana court of appeals decision is here.

 

When Divorce Court Rules on Your Religion

Posted by Ron Kauffman on

When a divorce court rules on your religion of choice, Constitutional issues are reborn. This happens frequently when couples agree to raise their children in a certain religion. In a recent appellate case, after the parents chose Christianity as their religion of choice, an Arizona family judge had to decide whether Mormons were Christian.

Divorce Religion

A Monumental Judgment

A Mother and Father married in November 1999 and had two children. In December 2017, the Mother petitioned for divorce and filed with the divorce decree a parenting plan signed by both parents. The Parenting Plan stated:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care. Both parents agree that the minor children may be instructed in the Christian faith.

About a year after the divorce, the Father joined The Church of Jesus Christ of Latter-day Saints, and the children occasionally joined him at meetings. After the Mother learned the children were accompanying their Father to a Mormon Church, she moved to enforce the Parenting Plan, claiming the Mormon Church is not Christian under the Parenting Plan.

The family judge held two hearings on the enforcement petition. During the second hearing, the Mother called a youth ministry leader from her church to testify that Father’s Church is not Christian.

After taking the matter under advisement, the judge decided that the Parenting Plan directs that “the Children shall only be instructed in the Christian faith” and that Father’s Church was not “Christian” within the meaning of the Parenting Plan.

The family court judge decided the Father could not take the children to the Father’s Church’s services, that he had violated the Parenting Plan, and awarded the Mother attorney’s fees.

The Father appealed.

Florida Divorce and Religion

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Road to a Constitutional Victory

On appeal, the first thing the appellate court found was that the trial judge’s ruling was based on the wrong interpretation of the Parenting Plan. The religious-education section of the Parenting Plan unambiguously stated that:

“[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.”

This language, it was held, permitted the Father to take the children to any “place of worship,” be it “Christian” or “non-Christian.” Nothing in the clause explicitly limits or narrows this authority. The family judge was found to have erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

But, the appellate court also held that even if the clause expressly constrained the Father’s right the court would have vacated the holding because the court violated the First Amendment of the Constitution when it ruled that a Mormon Church is not Christian.

The appellate court ruled that the divorce judge had to abstain from handling Mother’s claim once it became clear the dispute concerned an ecclesiastical matter.

The Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, “preclude civil courts from inquiring into ecclesiastical matters.”

Here, the family court dove right into an ecclesiastical matter by addressing whether the Mormon Church is part of the Christian faith. That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Although the judge was interpreting the Parenting Plan, the court did not resolve it through neutral principles of law but instead engaged in the exact type of inquiry into church doctrine or belief that the First Amendment prohibits.

For example, at an evidentiary hearing, the trial judge allowed in testimony from a minister to claim that Mormon Church was not part of the Christian faith, and admitted a chart comparing the tenets of the Mormon Church with Christian beliefs. The court’s order specifically found “that Mormonism does not fall within the confines of the Christian faith.”

In reversing, the appellate court ruled that courts are not the appropriate forum to assess whether someone who self-identifies as “Christian” qualifies to use that term. If the trial court’s order could stand, the “harm of such a governmental intrusion into religious affairs would be irreparable.”

A parenting plan’s religious-education provision can be enforced without violating First Amendment principles if the dispute does not require a court to wade into matters of religious debate or dogma.

The Arizona opinion is here.